University of Maryland Francis King Carey School of Law DigitalCommons@UM Carey Law Faculty Scholarship Francis King Carey School of Law Faculty 2020 The Modern Architecture of Religious Freedom as a Fundamental Right Peter G. Danchin University of Maryland Francis King Carey School of Law, [email protected] Follow this and additional works at: https://digitalcommons.law.umaryland.edu/fac_pubs Part of the Comparative and Foreign Law Commons, Constitutional Law Commons, Human Rights Law Commons, International Law Commons, Law and Philosophy Commons, and the Religion Law Commons Digital Commons Citation Danchin, Peter G., "The Modern Architecture of Religious Freedom as a Fundamental Right" (2020). Faculty Scholarship. 1635. https://digitalcommons.law.umaryland.edu/fac_pubs/1635 This Book Chapter is brought to you for free and open access by the Francis King Carey School of Law Faculty at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. 5. The modern architecture of religious freedom as a fundamental right Peter G. Danchin [T]he modern state and its political rationality have played a [...] decisive role in transforming pre- existing religious differences, producing new forms of communal polarization, and making religion more rather than less salient to minority and majority identities alike. Furthermore, [...] insomuch as secularism is characterized by a globally shared form of national-political structuration, the regulation of religious difference takes a modular form across geographical boundaries.1 1. INTRODUCTION What do the following pairs of cases have in common? 1. The European Court of Human Rights (ECtHR) holds that the wearing of an Islamic head- scarf by a schoolteacher in Switzerland is a “powerful external symbol” that may be legally proscribed to protect the religious beliefs of pupils and parents, and applies the principle of neutrality toward religion;2 while in a later case it finds that the compulsory display of a crucifix in Italian public school classrooms is an “essentially passive symbol” which neither threatens the religious beliefs of students or parents nor infringes the state’s duty of neutrality in the classroom.3 2. The U.S. Supreme Court holds that the sacramental use of peyote is an “outward physical act” which can claim no exemption or accommodation on the basis of religious liberty from neutral laws of general application;4 while in a later case it recognizes on the basis of religious liberty a “ministerial exception” to generally applicable employment discrimina- tion law which is held to interfere with an “internal church decision that affects the faith and mission of the church itself.”5 3. The U.K. Supreme Court upholds a racial discrimination claim brought by a Jewish student who is denied admission to a Jewish school in London on the basis that he is not recognized as Jewish according to Orthodox interpretation of halakhah;6 while in earlier cases the 1 Saba Mahmood, Religious Difference in a Secular Age: A Minority Report 2 (2016). 2 2 Dahlab v. Switzerland, 2001-V Eur. Ct. H.R. 463. 3 3 Lautsi v. Italy, App. No. 30814/06 (Grand Chamber, March 2011). 4 4 Employment Div. v. Smith, 494 U.S. 872 (1990). 5 5 EEOC v. Hosanna-Tabor, 132 S. Ct. 694, 706 (2012). 6 6 R. (on the application of E) v. The Governing Body of JFS, [2009] UKSC 15, [2010] 2 A.C. 728 (S.C.). 75 76 Constitutions and religion U.K. courts consistently recognize the right of religious schools under English law to deny admission to or limit the clothing of students on the basis of “religion.”7 4. The European Commission on Human Rights decides that the British government’s refusal to apply its blasphemy laws to the publication of Salman Rushdie’s The Satanic Verses is not a violation of religious freedom;8 while an earlier case decided by the ECtHR case upholds the British government’s seizure of a film on the basis it constituted an attack on the Christian religion by its “provocative portrayal of objects of religious veneration,” thus violating respect for the “religious feelings of believers” as guaranteed by the right to religious liberty.9 5. The Egyptian Administrative Court of Justice upholds the right of Bahais to have their religion listed on national identity cards on the basis of Islamic jurisprudence that indi- cates that “Muslim lands have housed non-Muslims with their different beliefs;”10 while on appeal, the Supreme Administrative Court holds, on the basis of the right to religious freedom as enshrined in the Egyptian Constitution, that such a listing on national identity cards is a violation of public order in “a country whose foundation and origin are based on Islamic sharia.”11 Despite their differences in spatial geography, culture and religious traditions, and despite divergences in reasoning and result, the first thing we might notice in common about these cases is that they are all contested in terms of the right to religious freedom. This, in itself, is not contested. In every case, the parties assert their claims in terms of the right to religious freedom before a national or international court or commission, which then proceeds to inter- pret the right and issue a legally binding judgment. Despite such differences, then, the thesis of this chapter is that we may discern a distinctive logic or common grammar that simultaneously grounds and shapes the normative structure of religious freedom as a modern constitutional or international right.12 Importantly, this logic is shared across the Western and non-Western divide. As the epigraph to this chapter suggests, this logic operates in two main forms: first, in the political rationality of the modern state (“political secularism”); and second, in the legal adjudication and realization of the right to religious freedom, with the result that “the regulation of religious difference takes a modular form across geographical boundaries” (“universal right.”) The juxtaposed cases in (1) to (5) above are drawn from a wide variety of jurisdictions and nation states, and involve a diversity of both majority and minority religious traditions and claims of right. Nevertheless, there is an unmistakable similarity in the conundrums entailed 7 7 R. (X) v. Headteachers and Governors of Y School, [2008] 1 All ER 249; R. (Begum) v. Governors of Denbigh High School, [2007] 1 AC 100. 8 8 Choudhury v. United Kingdom, App. No. 17439/90 (1991). 9 9 Otto–Preminger–Institut v. Austria, 295 Eur. Ct. H.R. (ser. A) (1994). 10 10 Husam Izzat Musa & Ranya Enayat Rushdy v. Ministry of Interior, Case 24044 of the forty-fifth judicial year, issued on 4 April 2006 (Court of Administrative Justice). 11 11 Cases No. 16834 and 18971 of the fifty-second judicial year, issued on 16 December 2006 (Supreme Administrative Court). 12 12 Cognizant of the many differences between national and international legal orders, I use the word “constitutional” here in a broad sense to include the right to religious freedom as recognized in regional and global human rights treaties such as Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and Article 18 of the International Covenant on Civil and Political Rights. The modern architecture of religious freedom as a fundamental right 77 in regulating religious differences that crosses the Western and non-Western divide, and that reveals a distinctive set of contradictions internal to the concept of the right to religious liberty itself. The reasoning in the apparently conflicting cases in (1) and (2) can be seen to be prem- ised on a shared distinction between internal and external spheres of religiosity, with ensuing consequences for conceptions of legal authority and the scope of state regulation. The cases in (3), (4) and (5) illustrate how the form of demarcation and meaning of these spheres is fiercely contested in terms of competing understandings of the object of the freedom protected by the right – whether construed as “belief,” “conscience,” or “religion.” The cases in (2) and (3) further illuminate how such contestation is complicated by unsettled questions concerning the proper subject of the right – whether an “individual,” a majority or minority “religious group,” a “religious institution” (e.g. “the Church”) or an entire “discur- sive tradition.” The cases in (5) finally present a yet deeper puzzle concerning what the terms “secular” and “religious” mean in modern accounts of political secularism, and how this ques- tion relates to competing justifications of the right to religious freedom itself. While the subject, object and meaning of the right are contested by the parties in all these cases, two matters remain beyond dispute: first, the need to apply the right to religious liberty itself to resolve the case at issue; and second, the authority of the courts of the sovereign state (whether at the national or international level) to determine what religion is for legal purposes, and the spaces and sensibilities it may inhabit in the legal and political order. This raises a second common feature: the deep anxiety generated by the adjudication of the right to religious freedom regarding contemporary conditions of secularity and individual freedom. Questions concerning the meaning of the right and the ensuing need to delimit the “religious” from the “secular” are axiomatically viewed as having the utmost consequence for the protection of fundamental rights and freedoms, and affecting the conditions more broadly of pluralism in a diverse polity. As observed by Agrama, this question is “always suffused with affects, sensibilities, and anxieties that mobilize and are mobilized by power,”13 as challenges to extant understandings of the secular and religious are viewed as posing threats to the con- tinued existence of liberal rights and freedoms.